“written constitutions do not happen by accident”

“written constitutions do not happen by accident”

Adam Tomkins – Public Law

Alongside its “inescapably political” nature (Adam Tomkins), the contours of our ‘constitution’, and hence its abiding ‘regimes’ of Administrative and Public Law, have always been highly ‘contested’ (Mark Elliott), and nowhere is that aspect of our legal/political life more apparent than when we focus on the ‘codification’ debate.

From Montesquieu and Voltaire, through Bagehot to the the fictitious Mr. Podsnap our ‘supposed’ constitution has hitherto (or so the British would want to believe) attracted a great deal of admiration but with recent (post June 23 2016) events at the forefront of all commentators minds, it would not be stretching the point to say that said ‘admiration’ has been/is being tested if not shadowed by as Dicey put it that “dark saying” of De Tocqueville . [A ‘supposed-ness’ that “forced from De Tocqueville, in a moment of irritation, the impatient aphorism that there is no constitution in England: “elle n’existe point”].

With a constitution cobbled together by what Sidney Low (The Governance of England 1908) once called ‘tacit understandings’, the question on everyone’s lips has to be what happens (to paraphrase Low) when “those understandings are no longer understood”.

‘Constitutional reform’ is once again very much in vogue and as such it is inevitable that the very question this essay poses is once more centre stage.

It is not a new question and as with all lego-political conundrums it is arguable from both sides; “deservingness cannot be determined a priori” to quote Dominic Grieve.

“Unnecessary and unjustifiable” on the one hand; “long overdue” (in the name of ‘certainty’) on the other; with both sides (most likely) acknowledging the need for reform, yet it would seem disagreeing fundamentally as to how that change is to be secured.

Vernon Bogdanor has long argued that the case for ‘codification’ is an intellectually strong one (mainly focussing on certainty) but nonetheless it still involves negotiating, and more importantly ‘justifying’ negotiating, Hume’s (is-ought) guillotine; whilst others (Low and Tomkins) amongst them have suggested that in fact the differences between written (codified) and unwritten (un-codified) constitutions is much exaggerated, an argument that may give weight to the ‘business as usual’ (as opposed to ‘radical reform’ argument). But why if Tomkins is correct would the decision to ‘codify’ (as put forward by Gordon Brown PM in his Governance of Britain 2007 Green Paper) be any more ‘radical’ than simply effecting those changes through the more familiar (to the British) process of ‘incremental change’.

Bogdanor once again has the (or at least an) answer; captured in his pithy aphorism: “what the Queen in Parliament enacts is law”.

At the core of the British constitution is the notion of Parliamentary sovereignty; and this in and of itself is in tension with any ‘project’ that may be advanced to ‘codify’ what he once called our ‘indistinct, indeterminate, and unentrenched’ constitution; regardless of the type of codification (be it a ‘lawyers’ constitution’ as per India or a ‘peoples’ constitution as per USA) adopted.

Different from Bentham’s fears of ‘ancestor worship’ (inevitable to a degree) this is not exactly a small detail. A codified constitution by its very nature, to a degree supplants Parliamentary sovereignty (witness the very different roles of the 1689 Bill of Rights (essentially asserting the rights of Parliament against the king) and its American equivalent). And if Miller/Santos [2016] is anything to go by (with both sides attempting to make use of Parliamentary sovereignty to buttress their Article 50 claims) it is less than clear that the time has arrived where such a radical departure from our constitutional tradition has yet arrived; in spite of the turmoil that has ensued following the unexpected referendum outcome.

This shifts the paradigm.

So much has been made of the ‘constitutional moment’; that quintessential game changing set of events (be it war/revolution/independence) that sets the scene for seismic constitutional reform, but much less analysis has been given to the nature of the impetus, the ‘constitutional momentum’ if you will.

Bogdanor has written extensively about the post-1997 constitutional ‘reforms’ (of which he lists 15 in his 2007 paper “Should Britain have a written constitution”), the constitutional independence of the Bank of England, the rise in the salience of referendums, devolution, electoral reform, the Human Rights Act 1998, the Freedom of Information Act 2000, the Constitutional Reform Act 2005 to name just a few; and just prior to the 2015 election he wrote of the “concatenation” of a whole variety of unresolved questions the constitution faces (the English Question/Asymmetrical Devolution/Crisis of Representation) wondering whether a game-changing ‘constitutional moment’ had or had not arrived. Well factor in Brexit and the threat of ‘indyref2’ and surely there has to be enough.

But there’s the rub.

The riposte may well be couched in terms of ‘unnecessary and unjustifiable’ but the key question will (as in all areas where law and politics interface) be, is there adequate political will; enough ‘constitutional momentum’ so to speak.

This takes as back to Gordon Brown. He was an undoubtedly a great thinker and few can doubt Bogdanor’s credentials in this area; but Brown was not a Margaret Thatcher or a Tony Blair. And in this Bogdanor is yet again very near the truth. To effect these kind of changes political will is just not enough any more (if it ever was). You need political ability. Specifically the ability and foresight to not only see the advantages that a codified constitution would bring but the capability of mobilising the ‘populus’ as you attempt to align constitutional ‘form’ with political ‘force’.

It was exactly what Cameron failed to do with regard to Brexit; as he clamoured to play a party political ‘card’ (appeasing the Eurosceptics) at the same time as (unsuccessfully) persuading the nation to vote Remain; never once seeming to connect his endless anti-Strasbourg rhetoric (prisoners’ votes etc.) with the rising pre-Brexit tide.

A constitutional ‘moment’ has certainly materialised but whether it will be enough to tip the balance in favour of a coded constitution remains to be seen. I am rather doubtful.

Parallels have been drawn with the 1830s (which spawned the Great Reform Act) and the first decade of the 1900s (which yielded the Parliament Act 1911). Well we have Theresa May’s Great Repeal Bill to look forward to, and it may be all that we can expect (even deserve) at this stage. If Scotland does finally secede and perhaps even Ireland reunite, it is not inconceivable that then, but only then, in the spirit of ‘damage limitation’ that Gordon Brown’s Charter 88 idea of `not just tidying up our constitution but transforming it’ will finally be taken seriously.

As John Locke established (Two Treatises of Government), though it may be in large part illusory we have an emotional stake in our constitutions, Bolingbroke articulated this in terms of constitutions having ‘values’, ‘goals’ as Tomkins puts it; at least for the time being the British remain attached to the ‘comfort blanket’ of Parliamentary sovereignty. As and (only) when the connection between this essentially anti-constitutional notion, and the escalating executive hegemony the last two decades has witnessed is made, may adequate constitutional ‘momentum’ be found to effect a change that in terms of constitutional ‘certainty’ and true popular democracy is long overdue.

“just keep swimming…”



Remember, remember the Fifth of November,

the Gunpowder Treason and Plot,

I see no reason why Gunpowder Treason should ever be forgot.

Guy Fawkes, t’was his intent to blow up King and Parliament.

Three score barrels were laid below to prove old England’s overthrow;

By God’s mercy he was catch’d with a dark lantern and lighted match.

Holloa boys, holloa boys, let the bells ring.

Holloa boys, holloa boys, God save the King!

Hip hip hoorah!

If not quite being asked to walk on water, current Public Law students (of which i am one) are at the very least being asked to negotiate some fairly choppy, constitutional seas; and wherever you look, the prospect of that changing in the immediate future, seems extremely remote. The roots of our current ‘crisis’ stretch back decades, some may even say centuries, but however constitutional history comes to be told, June 23 2016, will perhaps like November 5 1605 (which the oft quoted folk-poem above commemorates) ’[n]ever be forgot’.

But the truth is that history does have a tendency, if not to rewrite itself, then to be rewritten; and I will return to the Guy Fawkes analogy to illustrate the point somewhat later. Prior to the ‘Brexit’ (and even in that name resides a tale, for in fact it concerns the fate of the entire United Kingdom) referendum, few had heard of Article 50, the legal pink ribbon (to stay with the maritime analogy) required to launch the United Kingdom into ultimate ‘independence’ from the European Union. Even fewer, could have imagined the extent of the legal ramifications that would flow from the debate, let alone the ultimately legal challenges (in the form of McCord re: Judicial Review [2016] NIQB 85 and Miller/Santos v Secretary of State for Exiting the EU [2017] UKSC 5 to name just two) as to ‘just who’ gets to cut said ribbon.

New articles appeared on the UK Constitutional Law Association like starlings around a newly dug flower bed, seventeenth century cases were dusted off, and new principles formulated, in an attempt to un-puzzle this particularly intricate Gordian knot; our very own Brexit ‘discussion forum’ thread reaching some 145 posts.

The decision (as we all know) has been handed down; Lord Sumption with a ‘sleight of hand’ (as it has been called) had introduced a new ‘source’ of domestic law (https://twitter.com/SpinningHugo), a legislatively entrenched convention remained a convention rather than becoming a legal rule (https://ukconstitutionallaw.org/2017/02/10/joe-atkinson-parliamentary-intent-and-the-sewel-convention-as-a-legislatively-entrenched-political-convention/), and Lord Reed had written a clinically perfect but perhaps ultimately unsatisfying dissenting judgment (https://ukconstitutionallaw.org/2017/01/30/patrick-obrien-all-for-want-of-a-metaphor-miller-and-the-nature-of-eu-law/).

We may agree with the decision, or not. We may agree with parts of the decision and not others. We may even be unsure how to categorise the decision ‘politically’ (progressive/conservative). Was it a pro-Brexit decision, a pro-Remain decision, or none of the above; none of this helped by the oft forgotten fact that dos Santos was in fact a pro-Remainer; never mind the copious amounts of academic and ultimately judicial disagreement, all compounded by a media, that as ever, chose to make of it, exactly what they chose.

The ‘people’ have spoken so we are told, and even commentators as eminent as Vernon Bogdanor were hailing a new chapter of ‘popular democracy’ (http://linkis.com/www.thetimes.co.uk/a/EFed3 ). But with over four million signatories demanding a second referendum (https://petition.parliament.uk/petitions/131215), grave concerns surrounding the economy (https://www.bloomberg.com/news/articles/2017-01-26/u-k-economy-dismisses-brexit-threat-as-growth-beats-forecasts), and academics as tuned-in as Mark Elliott in his recent piece for Counsel (https://www.counselmagazine.co.uk/articles/miller-and-the-modern-british-constitution) suggesting that Miller has served little ultimate purpose other than to clarify just how difficult it is to locate sources of law in our ‘ramshackle’ constitution, we might do well to remember.

Remember what, you may well ask. Well just as our Guy Fawkes poem had a far more sinister second verse, that very few may even know of, let alone recall:

A penny loaf to feed the Pope

A farthing o’ cheese to choke him.

A pint of beer to rinse it down.

A faggot of sticks to burn him.

Burn him in a tub of tar.

Burn him like a blazing star.

Burn his body from his head.

Then we’ll say ol’ Pope is dead.

Hip hip hoorah!

Hip hip hoorah hoorah!

so indeed our Brexit referendum, had a far more cynical, entirely political underbelly, than any of our politicians are/were willing to advertise. Just as did the 18 September 2014 Scottish referendum. David Cameron didn’t promote a referendum because he had the slightest interest in the ‘will of the people’, he did it to appease the increasingly vocal and ever powerful euro-sceptics in the Conservative Party, just as in 2013, Westminster (after much disagreement) had finally conceded to pass the Scottish Independence Referendum Act 2013. As regards the latter the media response was no less unreasonable (https://www.theguardian.com/commentisfree/2007/may/03/theheatofthescottishsun).

So it seems that Cameron, perhaps unwittingly, has come to light a fuse that will have every bit as big a constitutional impact as that the Catholic ‘terrorist’ Guido Fawkes, and his 12 co-conspirators had in mind some four hundred odd years ago. Whether the good ship Brexit will bring great fortune to all ‘those who sail in her’, or will founder on her maiden voyage, remains to be seen. It was certainly not Foreign Secretary Boris Johnson’s finest moment when he announced the government will make a ‘titanic success’ of Brexit, but then again, he is not renowned for fine moments (https://www.theguardian.com/politics/2016/nov/03/brexit-will-be-titanic-success-says-boris-johnson).

Yale’s Ian Shapiro (https://www.amazon.co.uk/Moral-Foundations-Politics-Ian-Shapiro/dp/8187879262/ref=sr_1_2?ie=UTF8&qid=1486790850&sr=8-2&keywords=ian+shapiro) will often be heard saying “you can’t wring the politics out of politics”, and this is never more true than today as we witness challenges to the rule of law on both sides of the Atlantic. What lessons are we to learn from all of this; well on the broader view I will have to leave it to the ‘will of the reader’, as to current Public Law students, with exams approaching fast, perhaps we have no choice but to once more learn from the ocean and ‘just keep swimming’.

Happy Studies